February 13, 2009
/24-7PressRelease/ -- Could an Arizona Misdemeanor Domestic Violence Conviction Be Worse than a Felony?
Article provided by William Foreman, P.C. Please visit our Web site at
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Domestic violence offenses -- even misdemeanors -- are considered serious crimes in Arizona, and the state places much emphasis on limiting their occurrence. Even so, it may come as a surprise that those convicted of domestic violence misdemeanors face a greater penalty than even repeat felony offenders, at least in one regard: They lose their Second Amendment right to bear arms -- forever.
It has long been true that convicted felons are stripped of certain civil rights. In Arizona, for example, felons lose the right to vote, the right to serve on a jury, the right to run for certain public offices and the their right to own a gun. Similarly, in 1996 the United States Congress passed what is known as the "Lautenberg Amendment," which worked to suspend the right to carry or possess a firearm for anyone convicted of a misdemeanor domestic violence crime. An amendment to the Gun Control Act of 1968, on its face this new law placed domestic violence misdemeanants on equal footing with felons, at least where their Second Amendment rights were concerned.
However, Arizona law provides a method through which even repeat felony offenders can apply for restoration of their rights after their sentence has been served and their probationary period ended. Two years after a convicted felon has received an absolute discharge from prison -- or ten years afterward, in the case of those convicted of certain serious, violent offenses -- he or she may be granted the right to once again possess or carry a firearm. One would expect, then, that those convicted of domestic violence misdemeanors would also get a chance to regain their right to own a gun after they have paid their debt to society.
Not in Arizona.
Unfortunately for those affected, Arizona law offers no means to regain Second Amendment rights for those who lose them for a misdemeanor domestic violence conviction. Thus -- at least as far as their Second Amendment rights are concerned -- Arizonans who are convicted of felony involving domestic violence can suffer a lesser penalty than those convicted of a similar misdemeanor offense.
This illogical outcome was set in motion when Congress first enacted the Lautenberg Amendment. In 1996, when Congress was considering the amendment, most states already had laws in place to restore civil rights to convicts who had served their sentences and were deemed ready to reenter society. Rather than supersede these state-specific statutes, Congress instead included a provision in the Lautenberg Amendment relying on each state to set the conditions and procedures through which a person convicted of a domestic violence misdemeanor could regain his or her right to own a firearm.
In Arizona, however, people convicted of misdemeanors do not lose any of their civil rights. Thus, the Arizona statute that controls the restoration of rights to felons includes no such provision for misdemeanants -- prior to the Lautenberg Amendment, the Arizona legislature simply never perceived a need to include language in the statute covering misdemeanors.
While the permanent loss of one's Second Amendment rights may not seem like a major imposition to some, the consequences extend farther than merely hunting or self-protection. For instance, without the right to use a firearm, a person previously convicted of a domestic violence misdemeanor cannot work as a law enforcement officer, a security guard, or in any other occupation that requires the use of a gun. Moreover, the penalty is retroactive; a police officer who was convicted of a domestic violence misdemeanor fifteen or twenty years ago, for example, could lose his or her livelihood.
The Lautenberg Amendment has faced several challenges in federal court. Opponents of the law have argued that the amendment violates the Commerce Clause, the Equal Protection Clause, the Ex Post Facto Clause and the Second and Tenth Amendments. In 1998 a federal court held that it was an Equal Protection violation to treat those convicted of a misdemeanor more harshly than those convicted of a felony. Less than a year later, however, the court reversed itself, finding that Congress was within its power to address a serious social problem. The other constitutional challenges have been similarly unsuccessful.
Arizona's legislature could address this situation by adding language to the current statute that would provide a means for a misdemeanant to regain his or her civil rights. Unless and until they take this step, however, Arizona's citizens should be aware that a domestic violence misdemeanor conviction may cost them more than they expect.
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